John M. Mcguire v. Draper, Hollenbaugh and Briscoe Co., L.P.A., 02-LW-4629

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtABELE, P.J.
PartiesJOHN M. MCGUIRE, Plaintiff-Appellant v. DRAPER, HOLLENBAUGH AND BRISCOE CO., L.P.A., et al., Defendants-Appellees. Case
Decision Date04 November 2002
Docket Number02-LW-4629,01CA21

2002-Ohio-6170

JOHN M. MCGUIRE, Plaintiff-Appellant
v.

DRAPER, HOLLENBAUGH AND BRISCOE CO., L.P.A., et al., Defendants-Appellees.

No. 01CA21

02-LW-4629 (4th)

Court of Appeals of Ohio, Fourth District, Highland

November 4, 2002


COUNSEL FOR APPELLANT: Gregory D. Delev, 1250 Mercantile Center Building, 120 East Fourth Street, Cincinnati, Ohio 45202 and Mark J. Wasserman, 1200 Mercantile Center Building, 120 East Fourth Street, Cincinnati, Ohio 45202

COUNSEL FOR APPELLEES: Neil F. Freund and Len J. Bazelak, One Dayton Centre, Suite 1800, 1 South Main Street, Dayton, Ohio 45202

ABELE, P.J.

{¶1} This is an appeal from a Highland County Common Pleas Court summary judgment in favor of Reminger and Reminger Co., L.P.A. and Nicholas D. Satullo, defendants below and appellees herein.[1] The trial court determined that no genuine issues of material fact remained for resolution regarding whether appellees (1) committed legal malpractice, (2) converted another's property, and (3) spoilated evidence.

{¶2} John M. McGuire, plaintiff below and appellant herein, raises the following assignments of error:

FIRST ASSIGNMENT OF ERROR:

{¶3} "THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY SUSTAINING THE APPELLEES' MOTIONS FOR SUMMARY JUDGMENT."

SECOND ASSIGNMENT OF ERROR:

{¶4} "THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY ENTERTAINING APPELLEES [SIC] FIRST SUMMARY JUDGMENT WITHOUT ALLOWING APPELLANT TO CONDUCT DISCOVERY."

THIRD ASSIGNMENT OF ERROR:

{¶5} "WHETHER THE TRIAL COURT IMPROPERLY DENIED DISCOVERY FROM ZURICH."[2]

{¶6} Appellees raise the following cross-assignment of error:

{¶7} "THE TRIAL COURT SHOULD HAVE GRANTED SATULLO AND REMINGER AND REMINGER SUMMARY JUDGMENT AS TO THE CLAIM OF CONVERSION AT THE SAME TIME THAT IT DECIDED THAT THE LEGAL MALPRACTICE CLAIM AGAINST SATULLO COULD NOT SURVIVE."

{¶8} On February 11, 1995, K-Mart Corporation (K-Mart) terminated appellant's employment. In June of 1995, appellant retained the law firm of Draper, Hollenbaugh and Briscoe, Co., L.P.A. Co., H. Ritchey Hollenbaugh, and David L. Petitjean (the Hollenbaugh defendants) to represent him in a wrongful discharge action against K-Mart.

{¶9} On August 14, 1995, the Hollenbaugh defendants filed a complaint on appellant's behalf against K-Mart. The complaint alleged that K-Mart unlawfully terminated appellant on the basis of age, in violation of R.C. 4112.02. Subsequently, the complaint was dismissed for the failure to file within the applicable statute of limitations.

{¶10} The Hollenbaugh defendants notified appellant of his rights against them and contacted their insurance carrier, Zurich-American InsuranceGroup (Zurich). Zurich, in turn, referred the matter to appellees.

{¶11} Hollenbaugh consulted with Satullo regarding appellant's potential claim for malpractice. In order to protect against further malpractice claims and also to limit any potential liability, Satullo recommended, and Hollenbaugh agreed, that a second complaint alleging alternative theories of relief should be filed on appellant's behalf against K-Mart.

{¶12} Although Satullo recommended filing the second complaint, the Hollenbaugh defendants independently analyzed the alternative theories of relief to present in the second complaint and independently drafted the second complaint. The Hollenbaugh defendants sent Satullo a copy of the second complaint. Subsequently, the second complaint was dismissed based on res judicata.

{¶13} On March 20, 2000, appellant filed an amended complaint against the Hollenbaugh defendants and the appellees. In his complaint, appellant asserted various claims, including legal malpractice. Appellant alleged that the Hollenbaugh defendants breached the standard of care by failing to file the initial complaint within the statute of limitations period. As to the appellees, appellant claimed that after the Hollenbaugh defendants filed the complaint, they consulted with appellees and that the Hollenbaugh defendants and the appellees failed to amend the complaint prior to the dismissal to include additional causes of action that may not have been time barred. Appellant further alleged that appellees converted his client file and spoilated evidence. Appellant asserted that in September of 1998, Hollenbaugh forwarded appellant's client file to Satullo. Appellant claimed that he repeatedly requested possession of his original file, but Satullo refused to return the original file.

{¶14} On June 20, 2000, appellees filed a summary judgment motion and asserted that they are immune from liability to appellant. Appellees claimed that because they did not represent appellant, but instead represented the Hollenbaugh defendants in advising them about appellant's potential legal malpractice claim, no attorney-client relationship existed. Appellees argued that without an attorney-client relationship, they could not be liable to appellant for legal malpractice. Appellees further asserted that privity did not exist to substitute for an attorney-client relationship.

{¶15} With respect to appellant's claims for conversion and spoilation of evidence, appellees argued that no evidence exists that they acted with malice. Appellees further asserted that they did not wrongfully convert appellant's client file. Instead, appellees claimed that they held a valid attorney's retaining lien over the file, as appellant had not paid legal fees to the Hollenbaugh defendants.

{¶16} In support of their motion for summary judgment, appellees referred to Satullo's affidavit. Satullo averred that the Hollenbaugh defendants retained him to protect their rights in any legal malpractice claim that appellant may have had. Satullo stated that he "functioned strictly as counsel for" the Hollenbaugh defendants. Satullo further stated that he did not (1) meet appellant, and that he had just one phone conversation with him; and (2) participate in drafting the second complaint filed against K-Mart. Regarding appellant's claim for conversion, Satullo admitted that he did not immediately return appellant's client file. Satullo stated, however, that he believed that an attorney lien existed on the file.

{¶17} Appellees also attached Hollenbaugh's affidavit. Hollenbaugh stated that after the initial complaint was dismissed, he advised appellant of his recourse and submitted the matter to his insurance carrier. The insurance carrier then referred the matter to appellees. Hollenbaugh stated:

{¶18} "At all times, [appellant] was apprised by [Hollenbaugh] that (a) the matter had been submitted to our insurance carrier for review; (b) that there was a lawyer appointed by that insurance carrier who made recommendations; and (c) the identity of that lawyer was disclosed to [appellant], when various correspondence to [appellant] were openly copied to that lawyer."

{¶19} Hollenbaugh further stated that appellant "indicated an understanding that * * * [the Hollenbaugh defendants] had [their] own counsel."

{¶20} In opposition to appellees' summary judgment motion, appellant argued that an attorney-client relationship existed between him and appellees. Appellant claimed not to know of the precise nature of the relationship between the Hollenbaugh defendants and appellees and asserted that he reasonably believed that appellees acted on his behalf. Appellant also asserted that Hollenbaugh's disclosure of appellant's confidential information to appellees created an attorney-client relationship between appellant and appellees. With respect to his conversion claim, appellant argued that appellees acted maliciously by failing to return his file and by asserting a false attorney lien.

{¶21} In support of his argument, appellant's affidavit noted that Hollenbaugh told appellant that the insurance carrier thought of the idea of filing the second complaint. Appellant further stated that he did not know that the Hollenbaugh defendants had retained counsel. Appellant also requested the trial court to allow additional discovery before ruling upon appellees' summary judgment motion.

{¶22} On September 7, 2000, the trial court granted summary judgment in appellees' favor regarding appellant's legal malpractice claim, but denied summary judgment regarding the remaining claims against appellees. The trial court determined that no attorney-client relationship existed between appellant and appellees. The trial court stated:

{¶23} "The unrefuted factual information contained in the pertinent material heretofore mentioned is that Mr. Satullo's only action in this case was legal advice to the Hollenbaugh law firm for the purpose of reducing any liability the Hollenbaugh firm may have incurred in handling the underlying legal action between the plaintiff and Kmart. The fact that such advice and Hollenbaugh's subsequent action as to such claim may have been beneficial to the plaintiff does not, without some further action, on part of Satullo create an attorney-client relationship between the plaintiff and these defendants."

{¶24} The trial court further determined that no privity existed to substitute for an attorney-client relationship.

{¶25} On November 9, 2001, appellees filed a summary judgment motion as to the spoilation claim and renewed their summary judgment motion on the conversion claim. Appellees argued that they did not wrongfully convert appellant's client file because they possessed a good faith belief that an attorney lien existed that entitled them to withhold the file. Appellees stated that they contacted Hollenbaugh to determine whether appellant had paid any legal fees owed to Hollenbaugh and that Hollenbaugh advised them that pursuant to the fee agreement, appellant owed over $2,669 in legal expenses. Appellees contended that when an attorney possesses a good faith belief that an attorney's lien exists on a client's file, the attorney cannot be liable for conversion.

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1 practice notes
  • Wilkey v. Hull, Case No. 1:07-cv-160.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 3, 2009
    ...above, addressed only the privity exception and did not discuss malice. In McGuire v. Draper, Hollenbaugh & Briscoe Co., LPA, 2002 Ohio 6170, 2002 WL 31521750 (4th Dist.App.2002), the plaintiff sued his former attorneys and an attorney retained to represent their interests in defending ......
1 cases
  • Wilkey v. Hull, Case No. 1:07-cv-160.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • February 3, 2009
    ...above, addressed only the privity exception and did not discuss malice. In McGuire v. Draper, Hollenbaugh & Briscoe Co., LPA, 2002 Ohio 6170, 2002 WL 31521750 (4th Dist.App.2002), the plaintiff sued his former attorneys and an attorney retained to represent their interests in defending ......

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